PRACTICE AND PROCEDURE - pleadings - application to strike out statement of claim - need to plead material facts not conclusions - need to plead with sufficient particularity - umacceptable level of generality - purpose of pleadings ~ particulars no substitute for material facts - secondary boycott - various related torts - union official - allegation of conduct in concert by several respondents - failure to identify with appropriate particularity relevant conduct of union official - use of word "bans". CHARLIE CARTER PTY LID v THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA, THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH, THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION, FEDERATED CLERKS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS (WA BRANCH) CLIVE BROWN and JOE BULLOCK NO. WAG 74 of 1986 FRENCH J. 22 APRIL 1987 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 74 of 1986 BETWEEN: CHARLIE CARTER PTY LTD APPLICANT and THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA First Respondent and THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH Second Respondent and THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION Third Respondent and FEDERATED CLERKS UNION OF AUSTRALIA INDUSTRIAL UNION OF WORKERS, (WA BRANCH) Fourth Respondent and CLIVE BROWN woe os Fifth Respondent and JOE BULLOCK Sixth Respndent ee 2. MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 22 April 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: i. The applicant's statement of claim be struck out as against the fifth respondent. 2-6 The applicant pay the fifth respondent's costs of the motion in any event. 3. The applicant have leave to file an amended statement of claim on or before 6 May 1987. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: ee ee ee NO. WAG 74 of 1986 CHARLIE CARTER PTY LID APPLICANT and THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA First Respondent and THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH Second Respondent and THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION Third Respondent and FEDERATED CLERKS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS (WA BRANCH) Fourth Respondent and CLIVE BROWN Fifth Respondent and JOE BULLOCK Sixth Respndent CORAM = FRENCH J. 22 April 1987 REASONS FOR JUDGMENT Clive Brown, the president of the Trades and Labour Council of Western Australia, has been named as the fifth respondent in these proceedings. The applicant claims against him and others injunctive relief and damages in respect of alleged contraventions of s.45D of The Trade Practices Act 1974 and for wrongful interference with contractual relations, intimidation, conspiracy, nuisance and trespass. He now moves to strike out the statement of claim so far as it relates to him on the basis that it:- (a) Discloses no reasonable cause of action against him. (b) Tends to cause prejudice or embarrassment. (c) Is an abuse of the process of the Court. The applicant has carried on business for many years in Western Australia as a retail grocer. It conducts some 25 supermarket stores in the Perth metropolitan area and has a central warehousing facility in the City of Perth. These proceedings arise out of industrial action taken against the applicant by reason of a change in its policy with respect to the hiring of casual staff. ee eee ee 3. The statement of claim alleges that the first 4 respondents are Unions of employees and that the fifth respondent was at all material times President of the Trades and Labour Council. The sixth respondent is said to have been at all material times, an organiser with the first respondent (para.2). Various contracts are pleaded between the applicant and its suppliers and are said to have been entered into prior to 4 July 1986 (para. 3). It is alleged that on the morning of 7 July the fifth and sixth respondents acting with the authority of the first 4 respondents, met with representatives of the applicant and told those representatives that unless the applicant met a number of demands, the applicant would be deemed to be "in dispute" with the Trades and Labour Council (para. 4). The applicant, refused to accede to these demands and alleges as is set out in para. 5 of the statement of claim that:- "...on 8 July 1986 the Respondents imposed bans against the Applicant, which were implemented by the Respondents, acting in concert with each other, in the following manner:- (i) A picket line was established at the gates to the Applicant's warehouse in Aberdeen Street, Perth, so as to prevent the movement of stock into and out of the Applicant's warehouse, and thereby to prevent the supply of goods to the Applicant. (ii) 4. Picket lines were established at various of the Applicant's 25 retail stores in the Perth metropolitan area, so as to prevent the supply and delivery of goods to those stores. (iii)The 6th Respondent telephoned P & O Cold Stores and (iv) (vi) threatened industrial action against P & 0 if it supplied goods to the Applicant. On 14 July 1986 the General Secretary of the First Respondent telephoned P & O Cold Stores and threatened industrial action against P & O if it supplied goods to the Applicant. On 17 July 1986 the 6th Respondent telephoned Anchor Foods Pty Ltd and threatened industrial action against Anchor Foods Pty Ltd if it supplied goods to the Applicant. Between 4 July and 23 July 1986 the Respondents threatened industrial action against all of the other suppliers to the Applicant named in paragraph 3 hereof, if they supplied goods to the Applicant. (vii)Between 7 July and 23 July 1986 the Respondents and each of them caused various persons employed by them or acting on their directions, and also vehicles, to be placed in such a manner as to obstruct right of passage of the Applicant its servants, agents, invitees and suppliers into its warehouse premises at 294 Aberdeen Street, West Perth, and its major stores Hay Street Perth and Murray Street Perth. (viii) On or about 10 July 1986 the first 4 Respondents by their servants and agents, wrongfully entered and thereby trespassed on the Applicant's premises in Hay Street, Perth and did (a) Park their vehicles in laneways in respect of which the Applicant had a right of possession, or through which the Applicant, its servants, agents, invitees and suppliers had a right of passage; and (b}) Stand or sit at the entrances to the property sO as to occupy the property, thereby preventing access to and from the property by the applicant its suppliers, servants and customers. (ix) On or about 18 July 1986 the 6th Respondent wrongfully entered the Aberdeen Street premises of the Applicant and threatened violence to servants of the Applicant." ee Ne ore ne qn ose UT Rp Ee Te Xm Paragraph 6 of the statement of claim then goes on:- 5. "6. The conduct described in paragraph 5 hereof (a) (b) (c) (d) (e) (f£) (g) The hindered and prevented the supply of goods to the Applicant by its suppliers; was engaged in by the Respondents for that purpose; was such as would cause, or was likely to have the effect of causing, substantial loss or damage to the Applicant and did in fact cause substantial loss or damage to the Applicant; was in breach of s.45D of the Trade Practices Act 1974; was in furtherance of a wrongful conspiracy between the Respondents to damage the Applicant in its trade or business; constituted unlawful intimidation or coercion, calculated to induce and which did induce suppliers to breach their contracts with the Applicant, to supply goods to the Applicant; was calculated to cause and did cause a number of suppliers and customers of the Applicant to refuse to contract or deal with the Applicant." applicant claims that it has suffered damage (para. 7) and in support of a claim for exemplary damages, alleges that the respondents have acted in contumelious disregard for its rights. The substantive allegation in para.5 is that respondents "imposed bans" against the applicant. =—- the i i | \ Nene eres one poe ete eer eee we) nt = eee omen emery TTY mere ae ey Le gee eee 6. Although the dictionary defines a ban as a "formal or authoritative prohibition", the definition is of little assistance to an understanding of the way 1n which the word 1s used here. If it be a prohibition its addressees are not disclosed. Nor indeed is its content. The bans are said to have been "implemented by the respondents". The implementation was "by the respondents acting in concert with each other in the following manner...". It is a matter of some importance whether the allegation that the respondents acted in concert is an independent allegation of a material fact or an inference to be drawn from material facts pleaded. Paragraph 5 does not in my opinion, make it clear whether the "concert" alleged is an additonal element of the acts pleaded in sub-para.(i) to (ix) or whether those are overt acts from whose existence an underlying concert is to be inferred in much the same way aS a conspiracy may be proven. 7. If the concert is an additional element of the nine areas of conduct alleged, then the pleading is silent as to what it comprises. For the purposes of s.45D of the Trade Practices Act "concert" has been construed as involving knowing conduct the result of communications between the parties and not simply simultaneous actions occurring spontaneously - Tillman's Butcheries v AMIEU (NO. 2) (1979) 27 ALR 367 at 373. It involves also contemporaneity and a community of purpose requiring a consensual element - AMIEU V Mudginberri Station Pty Ltd (1985) 61 ALR 417 at 424. That contemporaneity does not require that the acts constituting the relevant conduct coincide precisely in time although no doubt their temporal relationship must be sufficiently close to be consistent with the notion of "concert" - Flower Davies Wemco Pty Ltd v BLF (WA Branch) [1987] ATPR 40-757 at 48,205. It is plain that sub-paras. (i) to (ix) do not all allege conduct which is, on the face of it, concerted (see sub-paras (iii), (iv), (v), (ix)). ee 7 . . rs t.4. 3 =e iF5- aS. p= -e— I 8. If as I think 1s the case, para. 5 alleges concert as an independent element, then what is pleaded is a conclusion but not the material facts on which it is based. This reduces in part to a question of the level of generality of the pleading and whether it is sufficiently particular. It is therefore desirable to consider the relevant pleading rules. Order 11 r.2 of the Federal Court Rules requires that:- ",..a pleading of a party shall contain and contain only, a statement in a summary form of the material facts on which he relies but not the evidence by which those facts are to be proved." The word "material" means "necessary for the purpose of formulating a complete cause of action" - Bruce v Odhams Ltd (1936) 1 KB 697 at 712 per Scott LU. In practice it may be difficult to distinguish between a "material fact" and a "particular". Antecedent to that distinction however, is the definition of the level of generality at which the material facts should be pleaded. In Ratcliffe v Evans (1892) 2 QB 524 the Court of Appeal comprising Lord Esher MR, Bowen and Fry LJJ said at 532:- 9. ",.eit is an ancient and established rule of pleading that the question of generality of pleading must depend upon the general-subject matter." Whatever level of generality 1s adopted in a statement of claim it must, 1n my opinion, be consistent with the purpose of pleadings, namely to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it - Farrell v Secretary of State for Defence (1980) 1 All ER 166 at 173 per Lord Edmund~-Davies. There are certain levels of generality of pleading which, while they may bring in all facts necessary to establish a cause of action, are insufficient for the purpose of properly informing the defendant of the case it has to meet. In Bruce v Odhams Press Ltd (supra) it was said to be insufficient merely to allege in general terms a cause of action. The cause of action must be alleged with particularity. Scott LJ at 705 gave the following example:- "For example, it would not be sufficient for a plaintiff un an action of trespass to plead "the defendant trespassed on my lands and took away and converted to his own use two of my horses" without = stating particulars of the time and place when the trespass is alleged to have taken place. A plaintiff must state sufficient particulars of his alleged cause of action which will enable the defendant either to admit it or deny 1t or otherwise plead a defence to it." The sufficiency of the pleading may be judged first by reference to the necessary condition that it disclose a reasonable 10. cause of action and second, by reference to the requirement for sufficient particularity that the respondents know in advance the case they have to meet. In TPC v David Jones (Australia) Pty Ltd [1985] ATPR 40-607, Fisher J. considered an application to strike out a statement of claim in proceedings for contravention of s.45 of the Trade Practices Act in respect of price fixing. The relevant paragraph of the statement of claim alleged (in that case para. 15):- "In or about mid March 1984 the corporate respondents and each of them or some two or more of them made an arrangement or arrived at an understanding the material provisions of which had the purpose, or had or were likely to have the effect, of fixing, controlling or Maintaining or providing for the fixing, controlling or maintaining of, the prices at which the First, Second and Third Respondents, and certain other retails of manchester crafts in the Adelaide metropolitan area would sell Sheridan manchester." Fisher J. observed of this passage at 46,906:- "Paragraph 15 of the statement of claim does not state any material facts. It is merely a statement of a conclusion drawn from facts which are not in the statement of claim. Standing alone, para.15 does not disclose a reasonable cause of action against the respondents." In my opinion the pleading in para.5 that the respondents acted in concert involves the pleading of a conclusion. ll. It does not necessarily follow that a conclusion may not constitute a material fact. Nevertheless the pleading is in this case unsatisfactory un relation to the fifth respondent. It is unsatisfactory if only because the allegation of concert 1s at too great a level of generality or, put another way, is insufficiently particular. Adopting the approach of Fisher J. in TPC v David Jones (Australia Pty Ltd) (supra) it might be said that the applicant had failed to plead all material facts. It is not necessary to go that far in this case. Because of its generality in respect of the fifth respondent para.5 as pleaded is embarrassing and should be struck out as against him. Given that the element of concert appears necessary to all the causes of action against the fifth respondent, the paragraph cannot stand as against him for any purposes. I should not conclude these reasons without considering the particulars filed in relation to the amended statement of claim. ae er —- oa as 12. Particulars of the statement of claim were provided by the applicant in answer to a request from the fifth respondent. The request was rather oddly worded in that it asked the applicant, inter alia to:- "Please plead each and every fact or matter relied upon by the applicant in support of the allegations:- (b) (c) the Fifth Respondent acted in concert with any or all of the other Respondents to:- i ii implement "bans" and do any or all of the acts pleaded in paragraphs 5(i) to (ix) inclusive; (if the facts or matters relied upon to support this allegation differ or vary as to each or any of the individual allegations contained in Paragraphs 5(i) to 5(1x), please plead those facts and matters separately in respect of each individual allegation). the Fifth Respondent participated in or performed any conduct which the Applicant says is - i ii The requests in paras. (b) and (c) above attracted the in breach of s.45D of the Trade Practices Act 1974; otherwise unlawful or tortious and in respect of which the Applicant seeks relief in these proceedings." (emphasis added) Same answer in each case, that being the following:- "On the morning of the 7th July, 1986 the Respondents all attended at the office of the Applicant. The First Respondent was represented by the Sixth Respondent, Bullock. The Second Respondent was represented by Mr fe epee ager oe FI te teen epeeees rieceygere 94 Pepto es, Sry ae 4 aha i} to ams Vin 13. J.J. O'Connor. The Third Respondent was represented by Mr. J. Gerritsen. The Fourth Respondent was represented by a person, the name of whom is not known to the Applicant. The Applicant told the Respondents that it was not prepared to meet with all of them. The Fifth Respondent Brown, speaking for all Respondents, then threatened the Applicant that if it did not meet with the Respondents then it would be "in dispute with the Trades and Labor Council - do you know what that means?". The Applicant, through its servant its secretary, respondend (sic) that it did not know what the Fifth Respondent Brown' meant. The Second Respondent, through its secretary O'Connor, speaking for all the Respondents, then said: "you will know within 5 minutes what it means." Bach of the first Four Respondents is affiliated with the Trades and Labor Council of Western Australia of which body the Fifth Respondent was at all material times, the President. The Respondents then nominated two of their number, namely the Fifth Respondent and Sixth Respondent, to represent all of them at a meeting to be held with two representatives of the Applicant, which was held at 10.40 a.m. or thereabouts on that day. At that meeting the Fifth Respondent, stating that he was representing all the Respondents, then put three demands to the Applicant, being those described in paragraph 3 hereof. The Applicant refused to accede to the demands of the Respondents and, on the 8th July, 1986, picket lines were established by the Respondents as pleaded in paragraphs 5(i) and 5(ii) of the Statement of Claim. At each picket line, signs were displayed stating that such picket line was an "official TLC picket line" and on those signs were affixed the names of each of the first four Respondents, and the other conduct pleaded in paragraph 5 of the Statement of Claim took place." The particulars seem to offer an account of the evidence upon which the applicant would construct an inference that the fifth respondent was involved in the concerted conduct of all the respondents. 14. However whatever their content and nature, they cannot rectify a defective pleading. Particulars cannot be used to fill gaps in the statement of claim which ought to have been filled by appropriate statements of the various material facts together constituting the cause of action - Bruce v Odhams Press Ltd (supra); H.1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] ATPR 40-607. There is nothing about the particulars provided that leads me to change my view that para.5 as pleaded is embarrassing. t In the light of that conelusion it also seems to me that no other part of the statement of claim will stand against the fifth respondent independently of para.5 and the appropriate order therefore should be that the statement of claim is struck out as against him. I will however hear from the parties as to the precise terms of the order. Counsel: 15. I hereby certify that the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French, Associate: Lise abe ti. bial [767 477 pu Sf Date: ¥ oat Aig - for the Applicant: Mr P.M. Nisbet instructed by Ilbery Barblett & O'Dea - for the Fifth Respondent: Mr S.R. Edwards instructed by Northmore Hale Davy & Leake Date of Hearing : 26 March 1987 Date of Judgment: 22 April 1987 ced SURO TY sey PN ITY — wr ier FETT Wwe awe ia A e i & &. a re Es is ba = b -ro E t